N.S. introduces new cyberbullying law it hopes passes constitutional muster

The Nova Scotia government has introduced new legislation that more narrowly defines cyberbullying and scales back on previously controversial measures — an effort to create a new law that will protect victims but also pass constitutional muster.

The province's original anti-cyberbullying law, created in 2013, was struck down in December 2015 by Nova Scotia Supreme Court Justice Glen McDougall, who called it a "colossal failure" that infringed on charter rights.

While the legislation to replace it was introduced Thursday, the bill won't be passed into law until at least next spring.

"This legislation is about preventing and responding to the harms of sharing intimate images without consent, and cyberbullying," Justice Minister Mark Furey told reporters during a bill briefing. "At the same time, upholding and protecting our fundamental freedom of expression."

Nova Scotia has redefined cyberbullying as an electronic "communication maliciously intended to cause harm" or which was exchanged or posted in a way that was "reckless with regard to the risk of harm."

Furey said the new legislation is the culmination of "a lot of background work," as well as consultation with legal experts, victim services, police, victims, families and staff with Cyberscan, the unit that had been tasked with enforcing the previous law.

Under the previous law, Cyberscan could seek court orders to compel perpetrators to stop. Bill 27 strips the unit of its ability to act as investigator or enforcer, however it does allow victims themselves to seek orders against their tormentors through civil court.

While there are Canadian criminal laws that cover harassment and sharing of intimate images without consent, Furey said Bill 27 will allow victims recourse in civil courts, where the threshold "is significantly less than reasonable and probable grounds in the criminal element."

The Intimate Images and Cyber-protection Act also includes defence provisions for those accused of cyberbullying.

They include the victim consenting "expressly or by implication" to the making of the communication, "fair comment on a matter of public interest" and if it is "done in a manner consistent with the principles of responsible journalism."

Police and peace officers are exempt if they share the offending images or communications during the course of their duties.

The head of Cyberscan, Roger Merrick, said he doesn't think the new restrictions on his unit will hamper its work, as only 10 of the 800 cases it has handled ended up in court. 

He said the unit will continue to support victims and their families, but will not offer advice on how to proceed beyond informing them of their options.

Furey said there is a good reason to curtail the scope of Cyberscan's work.

"There was legitimate concern that some of the past work of the Cyberscan unit may in itself be unconstitutional," he said.

Bill 27 also eliminates a controversial provision in the original law that could hold parents liable for the harm inflicted by their children. Merrick suggested that provision was essentially uninforceable.

"It was very difficult to hold parents responsible because, in this case, you'd be trying to hold a parent responsible for what their kid did with a phone while they're at school a mile away or two miles away at a sleepover," he said.

Leah Parson is happy there's an attempt to create a new law. Her daughter, Rehtaeh Parsons, died following a suicide attempt in 2013. Her family has said she was sexually assaulted in November 2011, when she was 15, and bullied for months after a digital photo of the incident was passed around her school.

But Leah Parsons is concerned with Cyberscan's new mandate.

"When you are a family and you're in need and you have trauma in the family that you need someone walking you through all the processes, not just to a certain point, but to have somebody be your advocate," she said.

"I think that is essential."

She also wonders why it took the province so long to come up with another draft of the law.

The plan is to move Bill 27 through second reading and on to the legislature's law amendments committee, where the public can have its say.

"Cyberbullying impacts Nova Scotians of all ages and that's why it's important we take the time to hear from them," said Furey.